6. Question 5: factors against prosecution

6.1 Question 5 of the consultation document invited those responding to indicate whether or not they agreed with each factor that was identified in the Interim Policy as a factor against prosecution. Respondents were asked to indicate their views using "Y" for "yes" and "N" for "no"; those who did not wish to let the CPS have their views on any particular factor were asked not to complete the relevant box.

6.2 The views of those who responded to any part of Question 5 are set out in the table below.

Table 6: Y/N responses to factors against prosecution

Figure 3: Y/N responses to factors against prosecution

Commentary

6.3 In respect of five of the 13 public interest factors identified in the Interim Policy as being against prosecution, there was majority agreement that each of these factors should be taken into consideration by prosecutors. The remaining eight factors against prosecution received an agreement rating of less than 50%.

6.4 A substantial number of those who responded by letter or e-mail also commented on the factors against prosecution and the CPS has considered these comments carefully and in detail, alongside the statistical analysis set out above, in formulating the CPS response outlined below.

CPS response

6.5 There was a great deal of comment during the consultation exercise on the factors outlined in the Interim Policy against a prosecution for assisted suicide. Five factors received an agreement rating in the "Y" and "N" answers of over 50% - factors 9, 12, 5, 7 and 13 - as shown in table 6 and figure 3 above.

6.6 A common thread runs through these factors in that each of them relates to the actions of the suspect, as distinct from any characteristic or action of the victim or any other party. Indeed, there is a marked difference in the agreement ratings received for the lowest of the suspect-related factors (55%) and the highest of the victim-based factors (44%).

6.7 The suspect-related factors are that:

• the suspect sought to dissuade the victim;
• the suspect gave assistance reluctantly;
• the suspect was wholly motivated by compassion;
• the suspect gave only minor assistance; and
• the suspect fully assisted the police in their enquiries.

6.8 The CPS is of the view, based on both the answers to Question 5 and the comments received during the consultation exercise, that these continue to be appropriate factors against prosecution, and they therefore feature in the Final Policy.

6.9 Each of the remaining eight factors received less than 50% agreement ratings, ranging between 30% and 44%, and typically this was reflective of, and reinforced by, the comments made during the consultation exercise.

6.10 The CPS has considered very carefully one of these factors, namely that the victim had a clear, settled and informed wish to commit suicide. That factor received an agreement rating of 38%. The CPS has borne heavily in mind the views of those who responded but remains satisfied that, of all the factors identified in the Interim Policy that related to the actions or characteristics of the victim, this factor should continue to be regarded as a factor tending against prosecution. Accepting other changes to the wording of the factor itself, it now reads: the victim had reached a voluntary, clear, settled and informed decision to commit suicide.

6.11 The CPS considers that, in every case of encouraging or assisting suicide, the decision of the victim to commit suicide is a vital aspect to consider. Its absence is clearly a factor tending in favour of prosecution but its presence is clearly a factor that should be borne in mind by the reviewing prosecutor when considering the factors tending against prosecution. The CPS believes that the fact that the suspect encourages or assists another to commit suicide, while acting in full accordance with the victim's voluntary, clear, settled and informed decision to commit suicide, should be taken into consideration by prosecutors. Accordingly, the CPS has decided that it is appropriate for that factor, as amended, to be a factor tending against prosecution in the Final Policy.

6.12 Factor 11 - that the victim had previously attempted to commit suicide and was likely to try to do so again - received only a 30% agreement rating, and attracted substantial critical comment in other forms of correspondence during the consultation exercise. Many respondents viewed this factor as indicative of the victim suffering from serious mental or physical issues which had prompted him or her to try to commit suicide previously, rather than as evidence of a voluntary, clear, settled and informed intent to end his or her life. Almost 1,000 respondents specifically asked for this factor to be removed from the Final Policy in their general comments.

6.13 These respondents typically argued that this could often be seen as a "cry for help" from the victim and that the fact that a victim had previously tried to commit suicide should not later have a bearing on the potential prosecution of the suspect providing assistance. Indeed, many respondents felt strongly that, because the victim had previously attempted suicide, he or she was a particularly vulnerable individual who could more properly benefit from increased care or support, as distinct from being someone who should be assisted to end his or her life. After considering all the responses received during the consultation exercise, the CPS has removed factor 11 against prosecution from the Final Policy.

6.14 Factor 4 against prosecution - that the victim had a terminal illness; or a severe and incurable physical disability; or a severe degenerative physical condition; from which there was no possibility of recovery - was one of the most commented upon individual factors during the consultation exercise. Many respondents provided their views, both through answering this question and through many other forms of correspondence with the CPS.

6.15 The factor was the subject of a great deal of concern from respondents, who felt that it was inappropriate to include anything in the policy which could be seen as discriminatory against any individual or group, including those with, for example, a serious illness or disability. This factor was also the focus of a number of responses from groups representing those with disabilities. Many felt that the inclusion of the factor gave the impression that the lives of those affected in this way were less valued in the Interim Policy. A significant proportion of the responses received asked the CPS to reconsider the inclusion of this factor, and remove it from the Final Policy. The CPS has also borne in mind in this regard the terms of EDM 302 which considered that the Interim Policy put the vulnerable at risk.

6.16 In addition, the CPS has considered carefully the conclusions of the Equality and Diversity Impact Assessment (Annex B) which concluded that the Interim Policy, if unamended, may have had the potential to cause indirect discrimination against disabled people.

6.17 Whilst not accepting some of the arguments put forward, the CPS recognises that any factor which could suggest that encouraging or assisting the suicide of a person who was suffering in this way was somehow less serious simply by virtue of the physical condition of the victim is inappropriate for inclusion in the Final Policy. The factor has therefore been removed.

6.18 Factor 6 against prosecution - that the suspect was the spouse, partner or a close relative or a close personal friend of the victim - was also the subject of a substantial amount of comment during the consultation exercise, with many respondents commenting through providing an answer to this question and many others through correspondence sent to the CPS. The factor received an agreement rating of 35% in answer to Question 5.

6.19 A significant majority of respondents pointed to the fact that family or other close personal relationships, as referred to in this factor, could not always be relied upon to be supportive. Indeed, a large number of respondents argued that relationships in such circumstances can be subject to change and may on occasion even be antagonistic or manipulative. Further, many respondents questioned whether such a factor against prosecution effectively discriminates against a victim who did not have such close support available to him or her.

6.20 Following detailed consideration of all the responses received during the consultation exercise, the CPS has removed factor 6 against prosecution from the Final Policy.

6.21 Four other factors received an agreement rating in response to Question 5 of between 36% and 44%. A common thread running through these factors is that each of them relate to the behaviour or capability of the victim. Following detailed consideration of all the feedback received during the consultation exercise, the CPS has removed each of these four factors from the Final Policy.

6.22 Accordingly, the factors against prosecution which appear in the Final Policy are now centred on the voluntary, clear, settled and informed decision of the victim and the behaviour of the suspect and the rationale behind his or her encouragement or assistance. The CPS considers this to be a principled way forward which allows prosecutors and members of the public clearly to understand the factors that will now be taken into consideration when determining the public interest.

6.23 The CPS has also reflected on the views of those who responded who considered that the phrase "the assistance which the suspect provided was as a consequence of his or her usual lawful employment" was ambiguous and could be applied to health care professionals as well as, for example, public transport workers who may have driven a bus or train which conveyed the victim to the place where they intended to commit suicide, provided the necessary intent of the suspect could also be proved.

6.24 The CPS took the view that this factor should cover the latter example rather than the former, but it recognises that there is a degree of uncertainty that is unhelpful. Having considered the matter further and in the light of the fact that the substance of this factor should be more focused on the extent of the encouragement or assistance provided, the CPS has removed this clause from the factor which appears in paragraph 45(3) of the Final Policy.

6.25 In the light of more detailed comments received, the CPS has also amended the wording of some of the factors against prosecution to avoid any ambiguity or concern that respondents identified in the original wording of the factors in the Interim Policy, and to reflect the legislative changes in the wording of the offence.

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